North Dakota Supreme Court

North Dakota SCt to Hear Aboriginal Rights Case Tomorrow

Matthew L.M. Fletcher1 Comment

Here is the website linking to the materials in State v. Delorme.

Here are the materials:

And a description of the issues from each party:

Appellant’s Statement of the Issues:
The district court erred when they denied the Appellant’s Motion to Dismiss due to lack of subject matter jurisdiction of the Court based on Appellant’s aboriginal usufructuary rights as guaranteed and preserved in the 1863 Treaty of Old Crossing.
The district court erred when they granted the State’s Motion in Limine concerning reference to any land in Eddy County where these offenses are alleged to have occurred as being part of an Indian reservation or Indian Country, that the Appellant was licensed by the tribe as a guide and outfitter.

Appellee’s Statement of the Issues:
Issue 1 Whether an outfitting license issued by the Spirit Lake Sioux Tribe to one of its members, which is then transferred to a non-member, precludes state jurisdiction over the non-member’s off-reservation outfitting activities?
Issue 2 Whether an aboriginal right to hunt can be a defense to a non-hunting charge?
Issue 3 Whether North Dakota will be the only jurisdiction to expand aboriginal hunting rights to include “ancillary,” non-hunting activities?
Issue 4 Whether the land on which the violations occurred constitutes either aboriginal land or Indian country?
Issue 5 Whether an 1863 treaty, which conveyed “all” Indian interests, preserved a right to hunt?
Issue 6 Whether any right to hunt established by the 1863 treaty terminated as a result of Indian Claims Commission proceedings and, if not, is the right enforceable through an Indian group that has not maintained a political identity and is the right subject to state regulation?

N.D. Supreme Court Issues Opinions in Fighting Sioux Case

Matthew L.M. Fletcher

Here is the opinion.

News coverage here, via Pechanga.

From the coverage:

The North Dakota Supreme Court today declined to address the constitutional issue raised by the State Board of Higher Education, which claimed that a law requiring UND to keep the nickname improperly intrudes on the board’s authority.

A slim majority of the court was ready to take up the constitutional issue but was blocked by the opposition of two justices and the requirement that such decisions require the support of four of the court’s five members.

“There are not enough members of this court willing to decide the constitutional issue at this time,” Chief Justice Gerald VandeWalle wrote. “We therefore do not address the constitutional issue, and we decline to enjoin the secretary of state from placing the referendum measure on the June 2012 primary election ballot.”

North Dakota Supreme Court Decides Kelly v. Kelly II

Matthew L.M. Fletcher

Here is the opinion from yesterday, an ongoing divorce that involves members of the Standing Rock Sioux Tribe. The first Kelly case involved questions of tribal court jurisdiction.

State Supreme Court Outcomes: North Dakota

Matthew L.M. Fletcher6 Comments

Continuing our project with another state supreme court — North Dakota — that, like Montana, (generally) does not have an intermediate appellate court, and must therefore handle all appeals.

Tribal interests have a 38 percent success rate before the North Dakota Supreme Court.

Here are the cases we counted:

Continue reading →

Kelley v. Kelley Soon to Be Argued in North Dakota Supreme Court; Tribal Court Jurisdiction Case

Matthew L.M. Fletcher
Issues: Appellant’s Statement of the Issues:
I. Whether the district court erred when it found it had subject matter jurisdiction over the custody and parenting responsibilities of the parties’ minor child.
II. Whether the district court erred when it imposed a 5-year restraint on Karol Kelly’s ability to work in the insurance industry when the court lacked jurisdiction and such restraints are void under North Dakota law.
III. Whether the district court erred when it ordered Karol Kelly to pay $40,000 as a sanction for attorney fees for actions before the tribal court when it had no evidence on Richard Kelly’s fees relating to the tribal court action, and ordered that the entire amount be paid in 90 days.

Appellee’s Statement of the Issues:
I.Whether the district court erred when it found it had subject matter jurisdiction over the custody and parenting responsibilities of the parties’ minor child.
II.Whether the district court erred when it ordered Karol not to have any contact with Kelly Insurance clients and insurance carriers doing business with Kelly Insurance for a 5-year restraining period.
III.Whether the district court erred when it ordered Karol Kelly to pay $40,000 as a sanction for attorney fees for failure to cooperate in preceding actions before the tribal court and ordered that the fee was to be paid in 90 days.
Briefs:

North Dakota S. Ct. Rejects Ethics Challenge by Indian Country Personal Injury Lawyer against Competitor

Matthew L.M. Fletcher

The case is Ackre v. Chapman & Chapman (opinion here).

An excerpt:

Ackre, a licensed North Dakota attorney, sued the law firm of Chapman and Chapman, alleging both he and Chapman and Chapman directly compete to represent enrolled members of federally recognized American Indian Tribes as plaintiffs in personal injury litigation involving motor vehicle accidents. Ackre claims federal and state statutes, see 42 U.S.C. §§ 2651-2653 and N.D.C.C. § 35-18-01, require Native American clients to use proceeds from personal injury settlements to satisfy hospital liens and to reimburse the United States Department of Health and Human Services for government paid medical expenses for treatment for injuries sustained by Native Americans in motor vehicle accidents. Ackre asserts Chapman and Chapman’s failure to advise its Native American clients about the mandatory statutory requirements to use settlement proceeds to satisfy hospital liens and to reimburse the federal government for government paid medical expenses constitutes attorney misconduct under N.D.C.C. § 27-13-08 and an unlawful practice under N.D.C.C. ch. 51-15. Ackre asserts Chapman and Chapman’s conduct damaged his law practice, and he sought treble damages in excess of $50,000 and attorney fees under those statutes.

North Dakota Supreme Court Rejects Challenge to UND Board on Fighting Sioux; Nickname “Killed”

Matthew L.M. Fletcher

Here is the opinion in Davidson v. State. Briefs and oral argument materials are here. And the UND Board “killed” the nickname.

An excerpt:

Eight members of the Committee for Understanding and Respect (“plaintiffs”) appeal from a district court judgment dismissing their action against the State Board of Higher Education to enforce a settlement agreement in a prior lawsuit by the University of North Dakota (“UND”) and the Board against the National Collegiate Athletic Association (“NCAA”) and to enjoin the Board from shortening the time period for the Spirit Lake Tribe and the Standing Rock Sioux Tribe to consider approving or rejecting UND’s use of the “Fighting Sioux” nickname and logo. Because we conclude the district court did not err in interpreting the language of the settlement agreement, we affirm.

And:

The plaintiffs, enrolled members of the Spirit Lake Tribe, thereafter sued the Board, alleging its proposed termination of the Fighting Sioux nickname and logo before November 30, 2010, violated the settlement agreement and seeking to enjoin the Board from terminating the nickname and logo before November 30, 2010. The plaintiffs claimed the settlement agreement precluded termination of the nickname and logo before November 30, 2010, and the Board was contractually bound to make a good-faith effort to obtain namesake approval from both tribes during that time.

And:

Although the language of the settlement agreement recognizes the North Dakota Sioux Tribes have important contributions in determining whether the Fighting Sioux nickname and logo should be used by UND and the agreement requires UND to continue to solicit the views of the two tribes on the use of the nickname and logo, we do not construe that language to require UND to continue using the nickname and logo through November 30, 2010.

North Dakota Supreme Court Hears Oral Argument in Fighting Sioux Case

Matthew L.M. Fletcher2 Comments

Here is the oral argument audio in Davidson v. State.

And the briefs are here.

Fighting Sioux Logo Case Appealed to North Dakota Supreme Court

Matthew L.M. Fletcher

From USA Today (H/T to A.):

FARGO, N.D. (AP) — Some University of North Dakota officials were hoping that a long-running dispute over the school’s Fighting Sioux nickname would be settled this week. Now it appears it could continue for several months.

A state judge ruled last month that the North Dakota Board of Higher Education has the power to drop the Fighting Sioux nickname and Indian head logo before a November deadline set as part of a settlement with the NCAA. The board promptly moved Thursday’s regularly scheduled meeting — originally to be conducted by conference call — to the university’s campus in Grand Forks to discuss plans to officially retire the moniker.

But the issue might not be debated for long.

Patrick Morley, the attorney for a Spirit Lake Sioux group that sued to keep the nickname, filed an appeal late Friday to the state Supreme Court. Morley did not return repeated phone calls by The Associated Press.

Luger v. Luger — State Court Jurisdiction over On-Reservation Property

Matthew L.M. Fletcher

Here is the North Dakota Supreme Court’s opinion in Luger v. Luger. Here is an excerpt:

Here, although Robert Luger and Raymond Luger reside on the Standing Rock Reservation, they cannot benefit from the principle that states, “‘a reservation Indian’s domicile on the reservation is not an in-state contact which grants jurisdiction to state courts,'” because they are not enrolled members of that reservation. Byzewski v. Byzewski, 429 N.W.2d 394, 397 (N.D. 1988) (quoting State ex rel. Flammond v. Flammond, 621 P.2d 471, 473 (Mont. 1980)). “[Indians who are not members of the reservation on which they reside] are citizens of the State . . . .” Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 186 (1980) (Rehnquist, J., concurring). Therefore, even if an Indian reservation constitutes a dependent sovereign nation separate from a state, Robert Luger and Raymond Luger are not “out-of-state” defendants. Moreover, Robert Luger and Raymond Luger were personally served the summons and complaint by the Sioux County Sheriff on December 30, 2005, and January 3, 2006.

Here is the appellant brief and here is the appellee brief.